The Polygamy Case That Isn't -- and It's a Good Thing, Too: Why the Warren Jeffs Prosecution Is Really About Child Rape

At the end of August, law enforcement finally nabbed Warren Jeffs, the prophet and autocrat of the polygamist Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS). Charged as an accomplice to felony rape of a minor, he had been on the lam for months and was featured on the FBI's Most Wanted list.

Jeffs now awaits trial, detained in the ironically named Purgatory Jail in southern Utah, and a small media circus is ready to begin when the gavel falls. Just this past Wednesday, September 27, a relatively routine ten-minute court session drew national news coverage -- foreshadowing an all-out media blitz for the probable cause hearing scheduled for late November.

Jeffs's prosecution has been spun in the media as a case about polygamy -- the last thing Utah needed. Although the mainstream Church of Jesus Christ of Latter-day Saints (the LDS Church, not to be confused with the FLDS sect) has long disavowed the practice, the titillating history of plural marriage is rekindled with every new story or pop culture reference. Recently, there's been Jon Krakauer's bestselling book Under the Banner of Heaven and the HBO show "Big Love." And some locals have even contributed to the spectacle with a little self-deprecating humor; for instance, a Park City microbrew called "Polygamy Porter" carries slogans like "why have just one" and "take some home for the wives."

But the Jeffs case doesn't fit into this cultural framework. Rather than being about polygamy, it's really a case about child rape -- an offense which we all can agree merits severe punishment. Jeffs is being prosecuted for alleged criminal misconduct against an underage girl, which in and of itself provides no basis for challenging the ban on plural marriage.

We should debate the criminalization of polygamy, whether it provides sound public policy and squares with constitutional doctrine. But the Jeffs case is not a particularly good vehicle for this discussion.

The FLDS Sect Practices Polygamy -- But That's Not What This Case Is About

The FLDS sect has some 10,000 members spread throughout the United States and Canada -- with the majority residing in the twin cities of Hildale, Utah, and Colorado City, Arizona.

A patriarchal structure controls every aspect of life in the FLDS community, with Jeffs and other FLDS leaders demanding strict obedience to their dictates. In this sect, it is an article of faith that a man must be married to three or more wives in order to receive eternal salvation.

But the polygamist nature of the FLDS sect does not mean that the Jeffs case is about polygamy.

To be sure, plural marriage as a religious mandate presents the unavoidable background for the crimes in question. But in announcing the charges against Warren Jeffs, the Utah prosecutor took great pains to emphasize the precise nature of the criminal charges: "It is not about religion nor is it about polygamy. This case is about a violation of the law by someone in a position of power and authority over a vulnerable young girl."

Specifically, Jeffs faces two counts of being an accomplice to rape, which is a first-degree felony in Utah carrying an indeterminate sentence of five years to life.

The Allegations in this Case

An affidavit in the Jeffs case paints a picture of a cult leader exercising absolute control over his minions. The alleged victim -- an underage girl referred to only as "Jane Doe" -- was a Hildale resident and devout follower of Jeffs.

Here are some of the factual claims in the affidavit:

Based on a revelation "from God," Jeffs instructed the girl that it was her spiritual duty to marry an older man, despite Jane's pleas that she was too young. Jeffs subsequently performed the marriage ceremony and told the newlyweds to "multiply and replenish the earth and raise children" -- a directive which the husband would later reiterate to Jane as he forced her to have sexual intercourse.

After this, Jane repeatedly complained to Jeffs that she did not want to remain married or have sex, and Jeffs repeatedly responded that she must obey the older man or face eternal damnation. "You go give yourself mind, body, and soul to your husband like you're supposed to," Jeffs told Jane. "Go back and do what he tells you to do."

As a result, Jane continued to submit to the older man's sexual advances, despite her desires to the contrary.

At trial, any number of defenses might be raised. Jeffs might dispute the girl's account of the facts -- for instance, he could claim that he wasn't involved in the marriage; that he didn't know that the couple would have sex while Jane was still underage, that he was unaware that the husband was forcing himself upon Jane; or that he never counseled the girl to submit to the older man. Will the jurors believe him? It will depend largely on their evaluation of witness credibility in what is likely to be a literal he-said/she-said contest between Jeffs and Jane.

Jeffs' allegiance to the FLDS sect -- though not part of the charges against him -- may make it hard for the polygamist prophet to deny Jane's account of the facts. After all, marital procreation is a fundamental tenet of the sect, and Jeffs's stature as its patriarch made him the only individual permitted to arrange and perform marriages within the community. So if he didn't orchestrate the wedding, who did? By arguing that someone else was at the pulpit, Jeffs would be undermining his own legitimacy as prophet and leader of the FLDS flock. And by denying that he urged the couple to procreate, Jeffs would be admitting he didn't preach a central FLDS principle.

The Legal Defenses Jeffs May Raise At Trial -- Also Dubious

In addition, Jeffs may try to raise various legal issues as well. But again, the defense will face an uphill battle.

Granted, the prosecution does not allege that Jeffs was physically present when Jane was raped. But accomplice liability in Utah (and elsewhere) does not require that someone actually be at the scene of the crime. If a defendant has the necessary mental state for the underlying offense (in this case, the minimum mens rea is recklessness), and "solicits, requests, commands, encourages, or intentionally aids another person" in the commission of the crime, that is enough to make him culpable as an accomplice.

Jane's conduct might be deemed consensual had she been an adult. But Utah law provides special protection for juveniles against sexual coercion. Given the respective ages of the victim and principal, Jeffs could be liable if he "entice[d] or coerce[d]" Jane to submit to the older man, even without any use or threat of force.

What counts as "enticement"? Utah case law has held that enticement includes psychological manipulation that causes the victim to do something she would otherwise not do, such as the offer of a reward--and in the words of one decision, an "offer of God's approval to a young religious girl can certainly be classified as an offer of a reward."

Thus, if the girl's factual allegations prove true, the prosecution has a strong argument that Jeffs was an accomplice to the crime: He intentionally aided the older man by telling Jane to submit to sexual intercourse or endure spiritual damnation.

Utah's legal scheme makes sense, given the devious nature of sexual predators and the susceptibility of children to psychological manipulation -- and if Jeffs broke the law, he ought to be held responsible. Full-fledged adults should not be having or promoting sexual contact with children, period, and religious intimidation of the young and vulnerable makes such actions particularly egregious.

In the past, Jeffs apparently told his followers that he will not be subject to earthly courts, and, of course, the final judgment will come when he meets his maker. But before then, he will have to answer for, among other things, the sexual abuses he allegedly facilitated under the guise of sacred duty.

For those wrongs -- not for the abstract concept of plural marriage -- Jeffs will face a secular justice system that pays no heed to sanctimonious rationalizations for systematic child abuse or any other crimes of force and fraud that may emerge in the coming weeks and months.

Let's Debate the Polygamy Issue -- But Not in the Context of the Jeffs Case

By putting polygamy aside in the Jeffs prosecution, however, I'm not suggesting that the subject of plural marriage is unworthy of debate. On the contrary, we should encourage a full and fair discussion about this religious practice and the complex issues that it raises.

Some scholars, including FindLaw's own Marci Hamilton (in this earlier column, and this one) have questioned both the constitutional and policy arguments against anti-polygamy laws. Certainly, Professor Hamilton has case law on her side. In 1878, the U.S. Supreme Court rejected a challenge to the federal ban on polygamy based on the Free Exercise Clause of the First Amendment. And just this year, the Utah Supreme Court reaffirmed that conclusion in State v. Holm, upholding an FLDS member's conviction for bigamy.

Although beyond the scope of this commentary, compelling critiques can be leveled against these precedents and the line they draw between belief and action. For instance, persuasive arguments can be made that government regulation must exempt certain religious practices, as the very notion of "free exercise of religion" (as compared to "rights of conscience") implies at least some distinctive protection for religiously motivated conduct. In addition, there is even a constitutional question as to whether the original statehood prerequisite that Utah forever ban polygamy absent federal permission -- codified in Article III of the Utah Constitution -- violates the so-called "equal footing" doctrine, which limits the ability of the federal government to place unique conditions on the admission of a new state into the Union.

But what about the policy issue? Before we condemn polygamy with the force of law, we might ask ourselves: Is it really anyone else's business when consenting adults want to form a domestic union? And does the criminalization of plural marriage merely push the practice underground, making it far more difficult to investigate and prosecute the undeniable acts of violence that may be occurring in polygamist communities?

Personally, I find it a mystery why anyone would enter into a plural marriage. But I also would not bet my paycheck at the blackjack table each month, or damage my health by drinking a case of beer or smoking a couple packs of cigarettes daily. And my viewpoint need not be imposed on everyone else: As long as the participants are above the age of consent and cause no harm to others, it is far from obvious that any of these fact-patterns -- including polygamy -- warrant government intervention. Moreover, when the state bans consensual, nonviolent behavior among adults -- whether it's plural marriage or vice crimes like prostitution -- the participants are driven from public view, and as a result, genuine crimes of force and fraud often go unreported and undetected.

Nonetheless, some acts cause the precise type of harm that justifies state-imposed punishment even if they are part of bona fide religious practices. The question of whether plural marriage remains one of them, however, will not be answered by the Jeffs case. That's because the polygamist prophet is on trial for rape, not polygamy--and it's a good thing, too.

Erik Luna is the Hugh B. Brown Chair in Law and Professor of Law and the Co-Director of the Utah Criminal Justice Center at the University of Utah's S.J. Quinney College of Law.